Jan. 6 committee withdraws Trump subpoena


The January 6 Committee has withdrawn the subpoena it issued to former President Donald Trump in mid-October (i.e., when it was trying to help Democrats make Trump the centerpiece of their midterm-election campaign).

The committee well knew it was never going to get Trump’s testimony, for many good reasons that have nothing to do with whether he had relevant testimony to provide. The issuance of the subpoena was not just a pointless stunt, it was counter-constitutional and norm-breaking. 

Hoping to end with a bang, the committee voted to do what the judges presiding over January 6 cases would not permit charged defendants to do: subpoena Trump for testimony. 

At this point, it is theater. It is a step the committee could’ve taken months ago, but didn’t, because members knew that it would bog them down in controversy and litigation. 

The Justice Department has always taken the position that presidents have absolute immunity from congressional subpoenas because the Framers did not want the executive to be subservient to the legislature. Trump is no longer president, but a congressional committee’s subpoena to a former president to grill him over his actions as president would bludgeon the separation of powers, putting every sitting president on notice that the legislature could interrogate him later for the actions he takes now — exactly what the Framers wanted to avoid. 

This specter was always bound to make any Trump subpoena the subject of a lengthy court fight. Knowing that such a subpoena would be seen by many not as Trump’s comeuppance but as a subversion of the Constitution’s structure, the committee waited to issue it until, as a practical matter, there was no time left to debate its enforcement. Congress is not in session again until after Election Day, after which there will be a few lame-duck days of mischief before Republicans immediately disband the committee.

Symbolic though it may be, the issuance of the subpoena still raises a number of obvious questions. Since committee members announced with great fanfare at the start of their proceedings that Trump was the instigator of the riot — and spent all afternoon Thursday claiming that they’d already proven their case against him — why is his testimony even necessary at this point? If Trump is suddenly an essential witness — after the committee let over a year go by without trying to subpoena him — how can the committee issue the final report it has been promising without interviewing him, as it surely won’t get the chance to do? And finally, since it is well known that Trump is the subject of an active criminal investigation in which a federal court found probable cause to believe that three felonies had been committed and issued a warrant to search his residence — which search led to the seizure of additional incriminating evidence — why would the January 6 committee think he’d agree to testify when anything he says can be used against him in that case?

If none of this makes sense to you, don’t worry — it’s not supposed to. The subpoena gambit was the last act of a months-long political theater.

Of course, like many things the committee did, its issuing and then retreating from the subpoena helps Trump. He is now publicly claiming that the committee’s withdrawal of the subpoena is an implicit acknowledgement of his blamelessness in the events surrounding the Capitol riot. The former president published a brief statement on his social-media platform:

Was just advised that the Unselect Committee of political Thugs has withdrawn the Subpoena of me concerning the January 6th Protest of the CROOKED 2020 Presidential Election. They probably did so because they knew I did nothing wrong, or they were about to lose in Court. Perhaps the FBI’s involvement in RIGGING the Election played into their decision. In any event, the Subpoena is DEAD!

This is nonsense, of course. In every criminal case, the main suspect has relevant information that would shed light on the allegations. But the prosecutor and grand jury virtually never subpoena the main suspect. In nearly 20 years as a prosecutor, I can think of a handful of times when a suspect requested to testify before the grand jury (believing he had a good defense and could talk the panel out of indicting him). But grand juries and professional investigators do not ignore the Fifth Amendment and try to coerce such testimony.

Everybody knows that to refrain from issuing a subpoena to a suspect, or to withdraw one improvidently issued, is not in any way an admission that there is no case against the suspect. (Although Trump may have a point that the committee would have lost in court had it seriously tried to compel Trump’s testimony.) To frown upon subpoenaing a suspect is an expression of our constitutional culture: A person is not required to testify against himself, and the government is obliged to respect that right, not undermine it. In my experience, a very high percentage of those suspects who were not subpoenaed were indicted, and a very high percentage of those indicted were convicted.

Nevertheless, Trump wins this media cycle because of the foolishly issued subpoena. Personally, I doubt this matters much. But, since committee members occasionally exhibited a Trump-like obsession with press coverage, it probably matters to them.

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